In re Sucker Creek

Mr. Justice Harris delivered the opinion of the court. 1. Quoting from her printed brief the appellant says that this appeal presents one question: “Has Mrs. [234] Leonard waived her riparian rights for the irrigation of her land?” Sucker Creek crosses both the Caldwell place and the Home place and all the lands of the two farms are riparian within the meaning of the precedents of this jurisdiction. It is now too late, however, to debate whether a riparian owner can divert and use water from a stream by virtue of a right acquired by prior appropriation and also assert a right to the surplus as a riparian owner. Repeated decisions have wedded this court to the doctrine that a settler upon a non-navigable stream has an election either to rely upon his rights as riparian proprietor or to make an appropriation of the water, if it is subject to appropriation, and claim as an appropriator, but he cannot do both. One can only be acquired by active and affirmative steps, while the other is incident to and, in the absence of a waiver or other loss of the right, accompanies the ownership of riparian lands. To use the water of a stream as a prior appropriator is to waive the right to use the water of that stream as a riparian owner: Low v. Schaffer, 24 Or. 239, 246 (33 Pac. 678); North Powder Co. v. Coughanour, 34 Or. 9, 22 (54 Pac. 223); Brown v. Baker, 39 Or. 66, 70 (65 Pac. 799, 66 Pac. 193); Williams v. Altnow, 51 Or. 275, 300 (95 Pac. 200, 97 Pac. 539); Davis v. Chamberlain, 51 Or. 304, 310 (98 Pac. 154); Andrews v. Donnelly, 59 Or. 138, 144 (116 Pac. 569); Bowen v. Spaulding, 63 Or. 392, 395 (128 Pac. 37). 2, 3. The right of appropriation is incompatible with the rule of riparian proprietorship. The doctrine of appropriation excludes the idea of equality and makes each water right superior to all others subsequently initiated and completed and inferior to all that have been previously acquired, while the characterizing feature of riparian ownership when applied to irrigation [235] is equality or, perhaps to speak more exactly, the right of each person is correlated with the right of every other person, although a riparian owner may take all the water in the stream if needed to satisfy domestic wants. 4. The right of prior appropriation can he measured by a fixed rule and the amount of water can be definitely determined, but the exact quantity of water which a riparian proprietor is entitled to use for irrigation cannot ordinarily be ascertained in advance, for the reason that the right of each must be exercised in subordination to that of all the others: Williams v. Altnow, 51 Or. 275, 298 (95 Pac. 200, 97 Pac. 539); Brown v. Baker, 39 Or. 66, 70 (65 Pac. 799, 66 Pac. 193); Caviness v. La Grande Irr. Co., 60 Or. 410, 422 (119 Pac. 731); Jones v. Conn, 39 Or. 30, 34 (64 Pac. 855, 65 Pac. 1068, 87 Am. St. Rep. 634, 54 L. R. A. 630); 53 C. L. J. 128; Crawford Company v. Hathaway, 67 Neb. 325 (93 N. W. 781, 108 Am. St. Rep. 647, 60 L. R. A. 889). In Bowen v. Spaulding, 63 Or. 392, 395 (128 Pac. 37), speaking through Mr. Justice Burnett, this court said: “When a person has appropriated to his exclusive use a fixed quantity of water and proposes to maintain that holding against all comers, he abandons the rule of riparian owner, and assumes that of a tenant in severalty. ’ ’ Other adjudications are to the same effect: Caviness v. La Grande Irr. Co., 60 Or. 410, 421 (119 Pac. 731); In re Schollmeyer, 69 Or. 210, 212 (138 Pac. 211); Hedges v. Riddle, 75 Or. 197, 198 (146 Pac. 99, 146 Pac. 964). 5. Measured by every test Mary Ellen Leonard, and so far as disclosed by the evidence each of her predecessors in title, elected to claim as a prior appropriator [236] and this election therefore operated as a waiver of the right to claim as a riparian owner. For the Caldwell ranch she claimed in her verified statement a definite amount of water for irrigation purposes and alleged that such “water right” was initiated and the water applied to a beneficial purpose prior to 1855. For the Home place she claimed a definite amount of water for irrigation and explained her claim by averring that her “water right” was initiated in 1865 and that the water was first used in 1866. She concluded each of these two verified statements with an express claim of priority and in one she added the information that practically all users on the stream above her had come to her and agreed to let water down to prevent suits. Moreover, after first referring “to the various sworn statements filed by the parties hereto before said superintendent for further particulars ” Mary Ellen Leonard contested the claim made by Mrs. Charles Trefethen and concluded with a prayer “for a decree giving the contestant herein priority for waters claimed in said sworn statements.” Similar language was used by appellant when contesting the water right claimed by John McDougall who appears to be a riparian owner. It is a noteworthy fact, too, that in 1891 at the dictation of her husband from whom she derived title, Mary Ellen Leonard wrote and he signed and caused to be served a notice saying that he claimed— “the right to use all the water of Sucker Creek at said mill whenever he shall see fit to use it for running said mill or for irrigating purposes, as against all persons on said creek, by virtue of the prior appropriation — excepting only the ditches of Samuel White and Beech & Platter, which were constructed before the mill-race was dug to said mill.” With the exception of the verified statements filed by Mary Ellen Leonard and two others, none of the veri [237] fied statements filed with the division superintendent in June, 1910, contained even the slightest suggestion of a riparian right, hut with the exceptions mentioned all the asserted rights involved in the adjudication were claimed solely upon the doctrine of prior appropriation. Some of the claimants were nonriparian owners and others .owned riparian lands. The contests were tried and the order of determination was made on the theory that the determination of the relative rights to the waters of Sucker Creek depended upon the relative priorities of all the claimants. The contest filed by J. D. Wimer against Mary Ellen Leonard illustrates his understanding of the claims being-asserted by her. It is true that she employed the word “riparian” in each of her statements but it is also true that in each instance that word was followed and limited by the word “appropriation.” Omit the single word “riparian” and each statement would be utterly void of any affirmative information that Mary Ellen Leonard was claiming as a riparian owner, but on the contrary the claim would be unequivocally that of a prior appropriator. It is plain that in her verified statements the appellant claimed as an appropriator and she emphasized her claims of priority in every contest that she filed. So far as we can know from an inspection of the record each of her predecessors elected to claim as an appropriator and she has likewise chosen, not only by her conduct but also by her pleadings, to assume the role of an appropriator. She has waived her right to use water as a riparian owner. The decree is affirmed without costs in this court. Affirmed. Mr. Chief Justice McBride, Mr. Justice Benson and Mr. Justice Burnett concur.